Allahabad High Court
Smt. Rekha Singh vs State Of U.P. And 6 Others on 13 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 2923
Bench: Pradeep Kumar Singh Baghel, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved 1. Case :- WRIT - C No. - 36490 of 2018 Petitioner :- Smt. Rekha Singh Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Swati Agarwal Counsel for Respondent :- S.K.Rao With: 2. Case :- WRIT - C No. - 38696 of 2018 Petitioner :- Smt. Rekha Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner:- Siddharth Nandan, Raj Kumar Kesari, T.P. Singh (Sr. Advocate) Counsel for Respondent:- M.C.Chaturvedi, Namit Srivastava, Sri Ravi Kant [Sr. Adv.], Tarun Agrawal, Vrindavan Mishra Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Pankaj Bhatia,J.
(Delivered by Hon. Pradeep Kumar Singh Baghel , J.) The petitioner was elected Adhyaksha (hereinafter referred to as the "Chairperson"), Zila Panchayat, Allahabad (now Prayagraj) in 2016. A no-confidence motion has been passed against her. She has instituted the first writ petition, being Writ-C No. 36490 of 2018, for issuance of a writ of certiorari to quash the minutes of the meeting of no-confidence motion dated 25th October, 2018. A further prayer has been made for a direction upon the respondents to produce the video and CD (Compact Disc) of the proceedings held on 25th October, 2018 before this Court.
While the first writ petition was pending, the State Government vide an order dated 15th November, 2018 appointed Smt. Kesari Devi, respondent no. 4, as Chairperson, Zila Panchayat, Prayagraj under Section 21 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 19611 (U.P. Act No. 33 of 1961). The said order has been challenged by the petitioner in the aforesaid second writ petition, being Writ-C No. 38696 of 2018. It is worthwhile to mention that in 2016 election petitioner had defeated the respondent No. 4, Smt. Kesari Devi.
Learned counsel appearing for the petitioner have made a statement that if the first writ petition of the petitioner is allowed, no cause of action in the second writ petition would survive. Learned counsel for all the parties, thus, have addressed us only in Writ-C No. 36490 of 2018, which is hereinafter referred to as the "writ petition". However, Sri M.D. Singh 'Shekhar', learned Senior Counsel appearing for the petitioner in Writ-C No. 38696 of 2018, has also made submission for the petitioner.
The relevant facts are these;
The petitioner was elected as Chairperson, Zila Panchayat, Prayagraj in the year 2016. She took oath in January, 2016. There are total 92 members of the Zila Panchayat, Prayagraj including the petitioner. On 01st October, 2018, 64 members of the Zila Panchayat moved a no-confidence motion against the petitioner before the District Magistrate, who vide his order dated 03rd October, 2018 fixed 25th October, 2018 as the date for the meeting to consider the no-confidence motion. The notices were sent to the members by the District Magistrate. The District Judge, Allahabad nominated the Additional District Judge-II, Allahabad as the Presiding Officer to preside over the meeting of no-confidence.
On 25th October, 2018, the meeting of the Members of the Zila Panchayat was held to consider the motion of no-confidence. In the said meeting out of 92 members, 51 elected members of the Zila Panchayat including the petitioner were present. Out of 51 members, who were present, 48 members cast their vote in favour of no-confidence motion, two members cast their vote against the no-confidence and one vote was rejected as invalid. The Presiding Officer on the same day declared that the no-confidence motion has been passed with the majority by more than a half (1/2) members of the Zila Panchayat, hence it was declared passed.
In the first writ petition, Writ-C No. 36490 of 2018, an impleadment application was filed on behalf of Smt. Kesari Devi. Another impleadment application was filed by the petitioner for impleadment of 50 members of the Zila Panchayat, who were sought to be impleaded as respondent nos. 9 to 58 in the writ petition. Both the impleadment applications were allowed by separate orders on the same date i.e. 02nd November, 2018 and the persons sought to be impleaded were impleaded.
We have heard Sri T.P. Singh, learned Senior Counsel, assisted by Sri Siddhartha Nandan, and Sri M.D. Singh 'Shekhar', learned Senior Counsel, assisted by Sri R.D. Tewari, Sri Raj Kumar and Smt. Swati Agrawal, learned counsel appearing for the petitioner; Sri Ravi Kant, learned Senior Counsel, assisted by Sri Tarun Agrawal, learned counsel for respondent no. 8, Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Udyan Nandan, for the respondents, and Sri Manish Goyal, learned Additional Advocate General assisted by Sri A.K. Goyal, learned Additional Chief Standing Counsel for the State authorities.
Sri T.P. Singh, learned Senior Counsel appearing for the petitioner, submits that the proceedings of no-confidence motion stood vitiated on the ground of violation of Rule 4 of the Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules, 19662, which provides to maintain secrecy of the ballot papers. It is submitted that there was no secrecy of the ballot papers or votes, which could be verified from the videography and the CD of the proceedings prepared by the Presiding Officer. The format of the ballot paper, over which the vote of no-confidence motion has taken place, was contrary to Rule 5 of the Rules, 1966, which provides that the ballot paper shall bear a serial number and official seal and signature of the Presiding Officer on one side. In the present case, the format of the ballot paper is at a variance with the ballot paper prescribed by the Rules, 1966. It is next submitted that 41 members of the Zila Panchayat, Allahabad were not permitted to enter the place of meeting and were forcibly stopped on the gate by the police officer on duty. Lastly, it was urged that two members, namely, Smt. Lalli Devi and Smt. Kalawati are illiterate but they have cast their votes without seeking assistance of a helper. The said fact shows that their votes were cast by proxy.
Sri M.D. Singh 'Shekhar', learned Senior Counsel appearing for the petitioner in Writ Petition No. 38696 of 2018, has submitted that the ballot papers, which were issued, do not provide any column of the serial number, and the rule also requires that second part of the ballot papers be kept blank. It is submitted that Rule 7(2) of the Rules, 1966 specifically provides that the member shall put a tick mark "√" or cross mark "x" against the word ''Yes' or ''No' as he is in favor or against the motion of no-confidence. The Rule further provides that the voter shall not make any other mark on ballot paper which can infringe secrecy of the ballot paper. But contrary to the said rules, not only the format of ballot was different to the prescribed format but the seal, which was used, was also against the rules. Learned Senior Counsel has taken us to the facts stated in the supplementary affidavit and the rejoinder affidavit, which were uncontroverted, to demonstrate that most of the members had shown their votes to a particular person, namely, Dara Singh before inserting their ballot paper in the ballot box. He further submitted that the arrangement made by the Presiding Officer was wholly unsatisfactory and in violation of the Rules, 1966.
Sri Ravi Kant, learned Senior Counsel appearing for respondent no. 8, has submitted that secrecy of the ballot is a privilege and a voter can waive his privilege; he can show his ballot paper to the whole world to show as to whom he has voted. The members prior to voting had expressed their views in their speech while participating in the debate on the no-confidence motion, so their view was known. He submitted that if the members had chosen to waive their right to maintain secrecy, it did not cause any prejudice to the interest of the petitioner.
Regarding the issue of the ballot paper, Sri Ravi Kant has drawn our attention to page Nos. 51 and 51A of the paper book of the writ petition and submitted that the petitioner has annexed the ballot paper, which relates to Kshettra Panchayat and not the Zila Panchayat. In fact, the ballot paper issued by the Presiding Officer fully complied with the requirements of the rules, as the format of the ballot paper used in the instant meeting has been used in so far more than a dozen of similar no- confidence motions across the State of Uttar Pradesh. Hence, it cannot be said that the ballot paper, which has been extensively used across the State, does not comply with the requirement of Rule 5 of the Rules, 1966.
As regards the submission of learned counsel for the petitioner that two members, namely, Smt. Lalli Devi and Smt. Kalawati are illiterate and since they were not provided helper, it was assumed that proxy was used, it is submitted by Sri Ravi Kant that the said submission is misconceived as there is no requirement of law that illiterate voters mandatorily must avail the services of a helper to cast their votes. It is absolute discretion of an illiterate elector to seek assistance in case of any perceived inability to cast vote.
Sri Ravi Kant has placed reliance on the following judgments of the Supreme Court:
(I) S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others3;
(II) Chaitanya Kumar Adatiya v. Smt. Sushila Dixit and others4;
(III) S. Iqbal Singh v. S. Gurdas Singh and others5;
(IV) Arun Kumar Bose v. Mohd. Furkan Ansari and others6;
(V) Kuldip Nayar and others v. Union of India and others7;
(VI) Rekha Rana (Smt) v. Jaipal Sharma and others8;
(VII) Abhiram Singh v. C.D. Commachen (Dead) by Legal Representatives and others9;
(VIII) Smt. Ishrat Jahan v. State of U.P. and others10.
Sri Manish Goyal, learned Additional Advocate General, has supported the submissions advanced by Sri Ravi Kant, learned Senior Advocate. Sri Goyal has vehemently submitted that the allegation made by the petitioner that 41 members were restrained from voting is totally concocted and false. It is contended that the petitioner has failed to give any material fact or evidence in support of the said allegation. In presence of large number of media persons it was impossible to restrain such a large number of the members from entering the meeting hall of the Zila Panchayat, where proceedings of no-confidence motion were held. He has further submitted that the voter has privilege to waive his vote. Under Section 94 of the Representation of the People Act, 195111 a voter can waive his privilege of the secrecy of the votes. He has also submitted that right to recall is inherent. He has placed reliance of the judgments of the Supreme Court in the cases of Usha Bharti v. State of Uttar Pradesh and others12; Bhanumati and others v. State of Uttar Pradesh through its Principal Secretary and others13; and Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and another14.
Sri Goyal has further submitted that under the limited scope of judicial review the Court should take a pragmatic view. The secrecy of the ballot is to be understood for the purpose for which it is applied for.
In rejoinder, learned Senior Counsel appearing for the petitioner has submitted that all the case laws cited by Sri Ravi Kant and Sri Manish Goyal on behalf of the respondents relate to Section 94 of the Act, 1951. The laws relating to constitution of Zila Panchayat and Kshettra Panchayat and constitution of the Parliament and the State Assembly operate in different fields and footings. The Rules, 1966 have been framed by the State Government in exercise of powers conferred under Section 237 read with Section 28(8) of the Act, 1961. The Act, 1961 and the Rules, 1966 are complete Code so far as the constitution of the Zila Panchayat and Kshetra Panchayat are concerned. The provisions of the Act, 1951 deal with constitution of the State Assembly and the Parliament. The provisions of the Act, 1961 cannot be circumvented on the basis of the interpretation of the provisions of the Act, 1951 as the intent of the Legislature varies for operation of law in different field. The law cited on behalf of the petitioner regarding maintenance of secrecy of the ballot paper as contained in the Act, 1961 as well as the Rules, 1966 are specific in nature, while the law cited by learned counsel for the respondents relates to maintenance of secrecy of ballot viz-a-viz the amendments made in Section 54, 94 and 128 of the Representation of the People Act, 1950 with respect to election of the State representative belonging to political party vide open ballot to avoid horse-trading and maintenance of discipline within the party sponsoring their candidature for the Rajya Sabha. It is further submitted that the principles laid down in S. Raghbir Singh Gill (supra) and Kuldip Nayar (supra) are not applicable to the conduct of business and process of election and removal of members and Chairperson of the Zila Panchayat, which specifically provide the manner in which the process of election is to be conducted and the provisions contained therein lay down full emphasis on maintaining the secrecy of ballot papers during the process of casting of vote, which cannot be vitiated even at the instance of voter, for that the intent is to give protection to the voters to cast their vote without any fear from disclosure of their votes.
Learned counsel for the petitioner submits that detailed facts have been given in the supplementary affidavit and the rejoinder affidavit by enclosing the photographs to demonstrate that most of the members after casting their votes but before inserting into the ballot box have shown their votes to certain persons, who were the men of respondent no. 8, and this fact has not been denied by the respondents although they had sufficient time after service of the rejoinder affidavit. Thus, those facts stand unrebutted. It is further submitted that the photographs have been verified during the screening of the compact disc (CD) in presence of learned counsel for the parties. He has placed reliance on the judgments in the case of La Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras15, and Ajay Pratap Rai v. District Basic Education Officer, Jaunpur and others16, wherein it has been held that the plea/specific ground taken in the rejoinder affidavit can be relied on if after sufficient notice to the other side stands unrebutted. He has also placed reliance on the judgments of this Court in Anil Kumar v. State of U.P. and others17; Hub Lal v. State of U.P. and others18; Madhukar Maurya v. State of U.P. and others19; and Smt. Sarita Devi v. State of U.P. and others20.
Since principal ground for the challenge of no-confidence motion is violation of Rules 4 and 7 of the Rules, 1966, at this juncture we think it appropriate to refer the pleadings of the petitioner giving the details of facts regarding violation of secrecy of the ballot paper in a little bit detail.
A supplementary affidavit has been filed to demonstrate that when no-confidence motion was tabled, there was no secrecy of ballot papers during voting. The deponent of the affidavit claims that he is an eye witness of the proceeding and he had seen the members, who cast their votes, showing the ballot papers to other members and it is only thereafter that it was put in the ballot box. In the affidavit a chart has been given giving details of the said facts. Paragraph-6 of the supplementary affidavit is extracted below:
"6. That a chart is given below with the name of members who after casting their votes, shown the ballot papers to the other members as follows:-
Members who had casted (sic) their votes Name of members to whom, shown the ballot paper after casting their votes by the members (name given in column-1) 1 Manjeet Kushwaha Had shown his ballot paper to all the members, sitting in the assembly. Ashok Kumar Ram Rahira Pandey 2 Lallan Patel Randheer Yadav 3 Tulamani Sameer Yadav, Suneel, Sudheer Kumar 4 Randheer Had shown his ballot paper to all the members, sitting in the assembly. 5 Sudheer Sahu Sameer Yadav, Kamlesh Pal, Bhupendra Singh, Shiv Narayan Yadav 6 Suneel Patel Had shown his ballot paper to all the members, sitting in the assembly through Kamlesh Patel, Dara Singh 7 Jamil Khan R.V. Pal 8 Kamlesh Pal Had shown his ballot paper to all the members, sitting in the assembly 9 Bhupendra Singh Dara Singh Patel, Shahid Khan 10 Shiv Narayan Yadav Dara Singh Patel, Shahid Khan Apart from these, there are many more members who had shown their ballot papers to the other members, after casting their votes."
Another supplementary affidavit was filed on 07th January, 2019 to bring on record some photographs of the meeting held on 25th October, 2018 to demonstrate the irregularity in casting of votes and in support of the averments made in the writ petition that open votes were cast by most of the members under the pressure of respondent no. 8 and some outsiders, who were allowed to be present in the meeting illegally, had snatched the photographs of the meeting dated 25th October, 2018. It is stated that the petitioner any how could get some photographs of the meeting dated 25th October, 2018. These photographs were not available at the time of filing of the present writ petition, therefore, they have been filed along with the supplementary affidavit. It is stated that these photographs clearly depict that the supporters of respondent no. 8 are standing and surrounding the ballot box and the members are putting their votes in the ballot box after showing the same to the supporters of respondent no. 8. It is further stated that these photographs have been annexed in the companion Writ Petition No. 38696 of 2018 as annexure-7 to the writ petition.
A counter affidavit on behalf of respondent nos. 2 and 4 has been filed on 16th January, 2019 sworn by the District Panchayat Raj Officer, Prayagraj (Allahabad). In the counter affidavit it is stated that there are 92 members of the Zila Panchayat, Prayagraj and more than half members have tabled the motion of no-confidence vide notice dated 01st October, 2018, whereon the Collector vide order dated 03rd October, 2018 convened a meeting on 25th October, 2018 for consideration of motion of no-confidence. On the date fixed viz. 25th October, 2018, 51 members of the Zila Panchayat appeared in the proposed meeting, out of them 48 members cast their votes in favour of the motion of no-confidence, 2 members cast their votes against no-confidence motion and 1 vote was rejected and thus, the no-confidence motion was passed against the petitioner. It is stated that a videography of the entire proceeding was done and the compact disc (CD) of the same has been submitted in the office of the Chief Treasury Officer, Prayagraj. The proceeding was presided over by a senior Judicial Officer nominated by the District Judge, Prayagraj/Allahabad. It has been denied that husband of the petitioner had raised the objection of any kind before the Presiding Officer. It is averred that before issuing ballot papers to all the members, they were identified by their Aadhaar Cards and Voter ID Cards and after secret voting the Presiding Officer opened seal of the ballot box and the ballot papers were taken out before the members present there and after counting the result was declared in presence of the members at the venue. No irregularity has taken place in the proceeding of no-confidence motion held on 25th October, 2018. A videography of the entire proceeding has been recorded and stored in a C.D. The respondents in the same counter affidavit have also replied the contents of the supplementary affidavits dated 01st November, 2018 and 07th January, 2019. Paragraphs- 3, 4, 5 and 6 of the supplementary affidavit dated 01st November, 2018 have been denied. It is stated that the averments made in the said supplementary affidavit are concocted only for the purposes of the case. The secrecy of the ballot paper and voting was duly maintained by the Presiding Officer on 25th October, 2018. It is also stated that such fact would be evident from the videography of the entire proceeding. It is also asserted that no objection relating to secrecy of the ballot paper or casting of votes was submitted before the Presiding Officer by any member including husband of the petitioner.
In reply to the supplementary affidavit filed on 07th January, 2019 it is stated that the district administration had deputed adequate police force and administrative officers at the venue of the meeting of no-confidence. No person other than the members of the Zila Panchayat was permitted to enter the Zila Panchayat complex, hence the allegation that some strangers were present inside the Zila Panchayat meeting hall is vehemently denied. It is stated that the photographs appended to the supplementary affidavit are of no relevance to the controversy arisen in the writ petition.
A rejoinder affidavit has been filed by the petitioner. It is stated that the petitioner has filed certain photographs, which clearly depict that the members were forced and coerced to cast their votes openly after showing the same to the supporters of respondent no. 8, namely, Dara Singh, an elected Member of Zila Panchayat from Ward No. 69, and Sri Shiv Pujan Patel, a Member of Zila Panchayat elected from Ward No. 47. A specific objection was raised by husband of the petitioner, the deponent, against their presence near ballot box and the same can be verified from the timeline of the video. It is averred that Dara Singh and supporters of respondent no. 8 were on the stage for approximately 20 minutes and he had verified the votes of 14 members and they had ensured that the votes were cast in favour of respondent no. 8, Smt. Kesari Devi Patel. The petitioner has given description of various members on the timeline being shown in the C.D. summoned by the Court in Paragraph-5 of the rejoinder affidavit, which reads as under:
"5. That the description on the timeline of the various members being shown in the C.D. summoned by the Hon'ble High Court is being given below for the convenience:-
Sl. No. Name of the Members of Zila Panchayat Ward No. Timeline Remark/ Photograph annexed with Supplement-ary Affidavit 1 Shri Sudhir Sahu 71 00.45 (Part-II) Page-17 (I) 2 Shri Sunil Patel 58 01:15 (Part-II) 3 Shri Bhupendra Singh 19 03:30 (Part-II) Page-12 (II) 4 Shri Shiv Narayan Yadav 22 04:05 (Part-II) Page 13 (I) 5 Shri Ram Bahadur Pal 12 05:30 (Part-II) Page 12 (III) 6 Shri Rajesh Kumar 11 06:05 (Part-II) 7 Shri Shahid Khan 25 06:40 (Part-II) 8 Shri Vikas Nigam 30 07:35 (Part-II) Page 12 (I) 9 Shri Satish Chandra Mishra 79 08:10 (Part-II) 10 Shri Rajkumar Pasi 81 08:35 (Part-II) 11 Shri Amit Kumar 82 09:10 (Part-II) Page 14 (I) 12 Shri Mithai Lal 41 09:45 (Part-II) Page 14 (III) (vote casted by Shri Dara Singh) 13 Shri Anirudh Patel 20 10:40 (Part-II) Page 16 (II) 14 Smt. Lalli Devi 24 14:00 (Part-II) Page 16 (III) 15 Shri Ashok Yadav 3 17:10 (Part-I) 16 Shri Lallan Patel 88 18:20 (Part-I) Page 17 (II) 17 Shri Tula Mani 44 20:15 (Part-I) 18 Shri Randhir Yadav 51 20:49 (Part-I) Page 13 (II) 19 Shri Suresh Kumar 53 00:20 (Part-II) 20 Shri Jamil Khan 72 01:45 (Part-II) Page 15 (III) 21 Shri Kamlesh Pal 33 03:05 (Part-II) Page 13 (III) 22 Shri Prithvi Pal 31 07:10 (Part-II) 23 Sunanda 49 13:15 (Part-II) 24 Khusnuma 54 14:40 (Part-II) Page 18 (I) 25 Shipra Yadav 40 15:10 (Part-II) 26 Smt. Asha Devi 4 16:40 (Part-II) Page 17 (III) 27 Shri Shiv Pujan Patel 47 20:10 (Part-II) Page 14 (II) Page 15 (II) 28 Shri Manjit Kushwaha 52 01:15(Part-III) Page 15 (I) 29 Gayatri Tiwari 38 Page 16(I)"
It is stated that secrecy of the ballot paper is regarded as one of the paramount conditions in proper acceptance or improper rejection of valid votes. It is stated that respondent no. 8 and the authorities carrying out the meeting for the purpose of no-confidence motion clearly permitted the voting in such a manner that goons and supporters of respondent no. 8 stood in between the polling booth and the ballot box and ensured that before casting of each and every vote it was verified that the vote has been cast in favour of no-confidence. It is stated that had that not been the case, no-confidence motion would have definitely failed. It is reiterated that 40 members were not permitted to enter the polling place as they did not succumb to the threats of respondent no. 8. It is submitted that the threat and coercion is clearly established since the vote cast, more particularly which has been detailed in the preceding paragraphs, were compelled to be shown in open and an objection was raised by the deponent of the affidavit. It is stated that in Part-III of the video at 10:15 timeline respondent no. 3, the Presiding Officer, has stated that "Aisa mauka kyon de rahe ho ki dusra paksha kuchh bole ( ,slk ekSdk D;ksa ns jgs gks fd nwljk i{k dqN cksys)" . It is averred that the said statement of the Presiding Officer also reflects that the meeting was being held and voting was being arranged in such a manner that openly it was possible that votes prior to being cast can be checked so as to ascertain that the same is being cast in favour of no-confidence.
It is further stated in the rejoinder affidavit that the video, which has been summoned by the Court, will demonstrate that after putting the seal mark on the ballot paper, the voter has to walk all the way upto the table of respondent no. 3, where there was a constant queue of other members, who were getting issued a ballot paper. There was no separate queue (line) for putting the ballot paper in the ballot box and one member, namely, Dara Singh was checking votes before being cast. It is submitted that the arrangement made by respondent no. 3 was blatantly in violation of the Rules, 1966. It is averred that it was duty of the Presiding Officer to have made an arrangement to ensure that the secrecy of the ballot paper is maintained. It is alleged that in want of the police arrangement and under the pressure of respondent no. 8 with the support of the ruling party and the Executive Officer, the Presiding Officer felt helpless, and the arrangement was made to ensure that booth, where the ballot paper was being marked, is kept at a distance and in the direction which was open and in the route of the members queued up for obtaining the ballot paper. The said arrangement was in such a manner that after putting mark the voters were coerced to show their marking to respondent no. 8 before coming through the same line, where other members/ supporters of respondent no. 8 were standing to cast their vote in the ballot box.
In Paragraph-18 of the rejoinder affidavit it is averred that one of the members of the Zila Panchayat Sri Mithai Lal, elected from Ward No. 41, showed his ballot paper towards respondent no. 8 (this can be verified on the timeline at 09:45, in Part-II) and thereafter Dara Singh took his ballot paper in his hand and put the same in the ballot box in front of respondent no. 3, who kept his eyes closed to the said fact. It is further averred that Dara Singh in similar manner verified from 14 Ward members, who have been shown at Serial Nos. 1 to 14, that they have cast their votes in favour of no-confidence motion and accordingly, entire secrecy rule has been violated in collusion with respondent no. 3. It is stated that the entire procedure was tainted with legal mala fide on the part of respondent no. 3 to ensure that polling is held in such a manner that even if a member wanted to maintain secrecy, he could not have done so and accordingly, the entire polling stood vitiated and the ballot papers, which were shown to the supporters of respondent no. 8 prior to being cast in the ballot papers, stand invalidated and if the same are excluded, the figure will go below 47 mark and no-confidence motion shall fail.
It is further stated in the rejoinder affidavit that the voters were clearly identified as to in whose favor they have cast their votes and accordingly, the votes stand invalidated and the respondent no. 3 has failed in his duty, which has been cast upon him by virtue of Rule 4 of the Rules, 1966, and in a way by show of ballot papers subsequent to marking clearly infringes the secrecy of the ballot paper and the same was not cancealed prior to inserting it in the ballot box as per Rule 7(3) of the Rules, 1966. It is also stated that format of ballot paper of the Pramukh Kshettra Panchayat and the Zila Panchayat is the same. It is stated that the petitioner has brought the format of the ballot paper on the record as annexure-6 to the writ petition, which were not in terms of Rule 5 of the Rules, 1966. It is further stated that there is complete violation of Rule 7(2) also. Rule 5 of the Rules, 1966 provides that serial number be mentioned at each and every ballot paper. In fact, serial numbers were not mentioned at ballot papers used in the no-confidence motion dated 25th October, 2018. It is alleged that two members, namely, Smt. Lalli Devi and Smt. Kalawati, who were elected from Ward No. 24 and 55 respectively, are illiterate lady and it was mandatory to provide them assistance by appointing a helper since they were not in a position to read and understand the contents of the ballot paper used in the no-confidence motion dated 25th October, 2018.
We have carefully considered the rival submissions advanced by learned counsel appearing for the respective parties and perused the record.
In order to appreciate the rival submissions, it is necessary to refer to the relevant statutory provisions of the Act, 1961 i.e. the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 [U.P. Act No. 33 of 1961] and the rules framed there under.
Section 28 of the Act, 1961 deals with no-confidence motion in the Adhyaksha (Chairperson) of Zila Panchayat. It reads thus:
"28. Motion of no-confidence in Adhyaksha or [x x x]21.- (1) A motion expressing want of confidence in the Adhyaksha or [x x x] of a Zila Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intent on to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of elected members of the Zila Panchayat for the time being, together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Zila Panchayat.
(3) The Collector shall thereupon--
(i) convene a meeting of the Zila Panchayat for the consideration of the motion at the office of the Zila Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and
(ii) give to the elected members notice of not less than fifteen days of such meeting in such manner as may be prescribed.
Explanation.-- In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notice of the meeting to the elected members shall be excluded.
(4) The Collector shall arrange with the District Judge of the district to preside at such meeting :
Provided that the District Judge may instead of presiding himself direct a Civil Judicial Officer not below the rank of a Civil Judge subordinate to him to preside at the meeting.
(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).
(4-B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the elected members at least ten days notice of the next meeting in the manner prescribed under sub-section (3).
(5) Save as provided in sub-sections (4-A) and (4-B) a meeting convened for the purpose of considering a motion under this section shall not be adjourned.
(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Zila Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.
(7) No debate on the motion under this section shall be adjourned.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.
(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(10) A copy of the minutes of the meeting together with a copy of the motion and the result of voting thereon shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Collector.
(11) If the motion is carried with the support of more than half of the total number of elected members of the Zila Panchayat for the time being--
(a) the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette; and
(b) the Adhyaksha or the [x x x] , as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha or the [x x x] , as the case may be, shall be received until after the expiration of one year from the date of such meeting.
(13) No notice of a motion under this section shall be received within two years of the assumption of office by an Adhyaksha, or the [x x x] , as the case may be."
In exercise of the powers conferred under Section 237 of the Act, 1961 the State Government has framed the Rules, 1966 i.e. the Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules, 1966. Rule 4, 5, 7, 8, 9 and 10 of the Rules, 1966 are quoted below:
"4. Secrecy of ballot.--The Presiding Officer shall cause such arrangements to be made as will ensure the secrecy of the ballot.
5. Ballot paper.-- Every member wishing to vote shall be supplied with a ballot paper which shall bear a serial number and the official seal and signature of the Presiding Officer on one side and the other being left blank.
7. Voting.-- (1) Every member wishing to record his vote shall do so in person and not by proxy :
Provided that nothing in this sub-rule shall be deemed to prohibit the rendering of any assistance to any member who, on account of any physical infirmity or illiteracy, is unable to record his vote on the ballot paper and requests for such assistance. (2) The member shall put a (tick), '√' or (cross) '×' mark on the ballot paper against the word 'Yes' or 'No', according as he is in favour or against the motion of no-confidence, respectively, and shall not put his signature or write his name on the ballot paper or make any such mark by which the secrecy of the ballot paper may be infringed. (3) The member shall then fold up ballot paper so as to conceal the mark put by him and insert the same in the ballot box placed in view of the Presiding Officer.
8. Disposal of 'Returned and cancelled' ballot paper.- (1) A member who has inadvertently dealt with his ballot paper in such a manner that it cannot be conveniently used as a ballot paper may, on returning it to the Presiding Officer and on satisfying him of the inadvertence, obtain another ballot paper in place of the ballot paper so returned and the letter shall together with its counterfoil be marked as 'Returned and cancelled' by the Presiding Officer and kept a separate envelop set apart for the purpose.
(2) If a member after obtaining a ballot paper decides not to use it, he shall return such ballot paper to the Presiding Officer who shall deal with the said ballot paper in the same manner as prescribed in sub-rule (1).
9. Ballot box.- The ballot box shall be any of the types approved by the Director of Elections (Local Bodies) under sub-para (2) of para 37 of the U. P. Municipalities (Conduct of Members) Order, 1953.
10. Inspection of ballot box.- Before the commencement of the voting, the ballot box shall be shown open to such members as may be present at the meeting and shall thereafter be secured and sealed in such manner that the slit for the insertion of the ballot papers remains open."
From the reading of the above provisions it is clear that the intention of the rule-making authority is to maintain the secrecy of ballot. Rule 4 of the Rules, 1966 enjoins that the Presiding Officer shall make such arrangement that shall ensure the secrecy of ballot. The heading of the rule itself is 'Secrecy of ballot'. Sub-rule (2) of Rule 7 also talks about secrecy of ballot. Sub-rule (3) of Rule 7 clearly shows the intention of the rule-making authority to maintain the secrecy of ballot. It says that after voting the elector shall fold the ballot to conceal the mark put by him before inserting the ballot in the ballot box. The words used in sub-rule (3) presupposes that a member shall conceal his vote before inserting it in ballot box. The language used in this sub-rule does not admit any other interpretation. A combined reading of the aforesaid rules shows that much emphasis has been laid to maintain the secrecy of the ballot paper. We will discuss the effect of violation of the Rules, 1966 in the later part of the judgment.
On 16th January, 2019 on the request of the parties we had fixed 17th January, 2019 to view the footage of CCTV in the video conferencing room of this Court in the presence of learned counsel for the parties. The order dated 16th January, 2019 passed by this Court reads as under:
"Counter affidavit filed today by Sri A.K.Goyal, learned Additional Chief Standing Counsel on behalf of respondent nos. 2 to 4 is taken on record.
In compliance of the order of this Court dated 08.01.2019, learned Standing Counsel has produced the CD of the CCTV footage, when no confidence motion was considered. It shall be handed over to the Registrar General of this Court.
As agreed between the parties, on 17.01.2019 at 2.30 P.M. footage of the CCTV shall be displayed in the Video Conferencing Room of the High Court in presence of the learned counsel for the parties.
Put up this case in the additional cause list on 17.01.2019."
On 17th January, 2019 in presence of learned counsel for all the parties we have seen the footage of CCTV. We have found that the motion for no-confidence was tabled and discussed in the hall of the Zila Panchayat. The polling box was kept at a table near the Presiding Officer and the Zila Panchayat Raj Officer, who were also issuing ballot papers to the members. A make-shift polling booth was made at a corner of the hall which was approximately at the distance of 20 feet from the polling box and the Presiding Officer. The respondent no. 8 was sitting in the front row at the extreme left side. After few minutes of the polling, husband of the petitioner, who is also a member, raised a protest regarding secrecy of the polling. He alleged that the members after casting their vote in the polling booth were showing the ballot paper to respondent no. 8, who was sitting in the front row at such a place from where she could easily see the ballot paper shown to her.
The Presiding Officer upheld his objection and shifted the polling booth from corner of the hall to the dais, from where, in our opinion, it was not possible to see the ballot paper but after casting vote the members were required to walk to the ballot box, which was at the table of the Presiding Officer, still the distance from polling booth to ballot box was 10 - 15 feet. In our view, to ensure secrecy of vote the ballot box should have been placed near polling booth but it was kept near the table of the Presiding Officer, from where he was issuing ballots to the members standing in a queue. Those members could easily see ballot papers of the members who had cast their vote and were going to insert it in the ballot box.
We find that several members after casting their vote have shown openly their ballot paper to the members before putting their ballot paper in the ballot box. We also find that there were 2-3 members, one of whom has been identified as Dara Singh by learned counsel during the screening of the video, who was verifying the ballot papers of the members before their putting in the ballot box. Some of the members after emerging from polling booth were openly showing their votes to all the members present there before inserting their ballot paper in ballot box, whereas most of the members had shown their votes to two-three persons, who were continuously remained present near ballot box. We have failed to understand that as to why the Presiding Officer allowed them to remain standing near ballot box during the entire proceeding of polling. We are constrained to observe that it appears to us that the arrangement of polling was designed in such a way that some of the supporters of motion may ensure to verify the votes of the members before they put their ballot in the ballot box. We saw that the Presiding Officer was a mute spectator in entire proceeding. The scheme of the Act, 1961 and the Rules, 1966, which deals with no-confidence motion, shows that it cast an obligation on a Judicial Officer to ensure purity of the election in no-confidence proceeding. We find that arrangements made by the Presiding Officer were not in terms of Rule 4 of the Rules, 1966. In fact, the arrangements made by him were so hopeless that it failed to inspire any confidence and ensure secrecy of the ballot. After screening the CCTV footage in the presence of learned counsel for both the parties, we find that the averments made in the rejoinder affidavit and the details given in the tabular form regarding those members, who have shown their vote to supporters of respondent no 8, are substantially correct. In fact, during the course of arguments learned counsel for the respondents have not denied those facts, hence we have no hesitance to record that there was complete breach of Rules 4 and 7 of the Rules, 1966.
Learned counsel for the petitioner has placed reliance on a judgment of a Division Bench of this Court in the case of Hub Lal (supra). In the said case, the petitioner, Hub Lal, was elected as Pramukh of Kshettra Panchayat. A no-confidence motion was moved against him which was passed in a meeting hall on 10th January, 2008. The result was challenged amongst other grounds that there was violation of secrecy of the ballot papers and the supporters of the petitioner were restrained from entering the meeting hall and were physically removed from the places. The Court had viewed the videography of the proceeding of the meeting in the presence of learned counsel for the respective parties in the chambers. During the course of viewing the C.D., the Court found a large number of irregularities and observed as under:
"7. ....We have seen that the members were directed to cast their votes by pointing out the place and were further directed to put the same in the ballot box. ....
8. In view of what we have seen in the "C.D.", we have come to the conclusion that the meeting dated 10th January, 2008 cannot be said to be legal and valid meeting of the Kshettra Panchayat, rather it was sham, farce and fraud on the democracy. To us it further appears that in these circumstances we have no option but to quash the proceedings and resolution passed in the meeting dated 10th January, 2008 for consideration of motion of no confidence against the petitioner Hub Lal. Before concluding, we must remind the District Magistrate, Allahabad that the conduct of the Presiding Officer Sri B.L. Saroj and the observer namely Pankaj Kumar Shukla clearly demonstrate that they have acted in a wholly illegal and arbitrary manner and they have not performed their duties like a Presiding Officer and observer of the meeting dated 10th January, 2008, therefore deserve to be punished suitably. The S.H.O. of police station, Manda R. N. Siddharth is also liable to be punished as he did not allow the members of the Kshettra Panchayat to participate in meeting dated 10th January, 2008."
(emphasis supplied) The Division Bench quashed the resolution dated 10th January, 2008 passed in the meeting for consideration of motion of no-confidence against the petitioner, Hub Lal.
In Anil Kumar (supra) somewhat similar issue arose. The petitioner, Anil Kumar, was elected Pramukh of Kshettra Panchayat, Marehra, in district Etah. There were 74 elected members of the Kshettra Panchayat. A motion for no-confidence was tabled signed by 42 members of the Kshettra Panchayat. The motion was passed on 04th September, 2017. The petitioner challenged the same on amongst other grounds that the ballot paper, which was provided for voting for motion of no-confidence, was not in accordance with the format provided in the relevant rules. The rules provide the format of ballot paper to be used in the meeting of no-confidence. Admittedly, the ballot paper issued in the said case was not in terms of the format provided under the Rules. Learned counsel for the respondents therein urged that the voting of no-confidence motion was undertaken by a secret ballot, thus, there was a substantial compliance of Section 15(8) of the Act, 1961 and the motion of no-confidence shall not be vitiated only on the ground that the ballot paper used in the meeting was not in conformity with the sample provided in the rules.
The Division Bench in the said case held that if format of the ballot paper provided in the rules was not complied with, no-confidence motion shall stand vitiated. The Court following the decisions of the Supreme Court in Mohinder Singh Gill and another v. Chief Election Commissioner and others22 and a Full Bench of this Court in Mange Ram v. District Panchayat Raj Officer/ Prescribed Authority, Saharanpur and others23 held as under:
"18. In view of the provisions of Section 15, sub-section (8) of the Act providing that motion of No Confidence shall be put to vote, which shall be held in the 'prescribed' manner and in view of the definition of the word "prescribed" contained in Section 2 (19) of the Act, it is clear that the voting ought to place in the manner prescribed by Rules of 1966. Rule 5 of the said Rules provides the format of the ballot paper, which clearly stipulates that the ballot paper shall bear a serial number and the official seal and signatures of the Presiding Officer on the one side and the words "Yes" and "No" written on the other. Similarly, Sub-Rule (2) of Rule 7 prescribes that the member shall put a tick or cross "X", on the mark ballot paper against the words "Yes" or "No", as per his intention and then fold the same and insert it in the ballot box.
19. Undisputedly, in the case in hand, the ballot paper was not in accordance with the prescription made in Rule 5 as it did not contain any option for such voters to put the mark on the ballot paper, who intended to vote against the motion.
** ** **
25. Admittedly, in the case in hand, procedure to be followed in a meeting of 'No Confidence' is governed by the Rules of 1966. It is imperative that procedure prescribed thereunder has to be strictly followed....
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36. As a result, the writ petition stands allowed.
The proceedings of the impugned meeting of 'No Confidence' of Kshettra Panchayat, Marehra, District Etah dated 04.09.2017 and the result of the voting held in the said meeting declared on 25.09.2017 stand quashed. Consequences to follow."
Sri Ravi Kant, learned Senior Counsel appearing for respondent no. 8, has argued that same format has been used in most of the Zila Panchayats in the State. We find it difficult to agree with the submission of learned Senior Counsel. As held by the Division Bench in the above case, if the procedures are mandatory then only because the deviation has been done on a large scale, will not be sufficient to condone the irregularity/ illegality. The Act, 1961 provides for the establishment of both Kshettra Panchayat and Zila Panchayat. Chapter II deals with Kshettra Panchayat and Zila Panchayat. Sections 3 to 16 of the said chapter provide constitution and composition of Kshettra Panchayat and Section 15 deals with motion of non-confidence. Likewise, Sections 17 to 29 of Act, 1961 deal with constitution, term of President, etc of Zila Panchayat and Section 28 lays down procedure for motion of no-confidence in the Chairperson of Zila Panchayat. A perusal of Sections 15 and 28 of the Act, 1961 makes it clear that both the sections are pari materia.
It is trite that in the matter of election law the statutory provisions should be strictly complied with.
In Arikala Narasa Reddy (supra) the Supreme Court has observed thus:
"13. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation.....
Learned counsel for the respondents has relied on the case of Smt. Ishrat Jahan (supra), wherein a Division Bench of this Court in paragraphs- 17 and 20 of the judgment has held as under:
"17. In our opinion for secrecy of the ballot being infringed not only it is necessary for the petitioner to establish that these 11 voters had cast their vote within the vision of other members present in the meeting, it is also to be established that the other members could known by such casting of vote as to whether the vote has been cast in favour of the motion or against the motion with certainty. Unless the second aspect of the matter is established by cogent evidence, merely because other members present could see a voter affix the stamp on the ballot paper will not render the secrecy of the ballot paper infringed. *** *** ***
20. Merely because some voter are seen while casting the vote or even if he display the ballot paper bearing the seal from a distance without anybody being able to see as to whether the vote has been cast in favour or against the motion, the entire voting cannot be said to have been vitiated. Therefore, what follows is that the entire elections cannot be said to be vitiated merely because some voters could be seen casting their vote. Thus the plea raised by Shri Tripathi that the entire elections stand vitiated in the facts of the case has to be rejected."
The said case is distinguishable on the facts of the case. In that case it was not possible to see as to whether the vote has been cast in favour or against the motion. In the present case, the supporters of respondent no. 8 were standing near the ballot box and they had seen most of the ballot papers of the members before putting it in the ballot box to verify as to in whose favour the vote has been cast. Thus, the said case does not support the case of the respondents.
Now we will consider the submissions of learned counsel for the respondents.
Sri Ravi Kant, learned Senior Counsel appearing for respondent no. 8, has placed heavy reliance on the case of S. Raghbir Singh Gill (supra), wherein it has been held that secrecy of the ballot paper is a privilege, which can be waived by an elector. The said case arose out of election to the Council of States. One Sardar Raghbir Singh Gill was an independent candidate. The elections were held for three seats and there were four candidates. The voting was in accordance with the system of proportional representation by means of single transferable vote. Two candidates of Indian National Congress secured 27 and 29 first preference votes. Sardar Raghbir Singh Gill secured 23 first preference votes. The dispute arose in respect of postal votes of 8 MLAs polling to opposition parties who were then detained under the Maintenance of Internal Security Act (MISA). It was alleged that the then Chief Minister abused his official power to secure the election of Sardar Raghbir Singh Gill, and in collaboration and conspiracy with the Superintendent of Jails and under the direction of the Chief Minister the postal ballots were tampered. It was found that the tampering was made in such a manner that even a layman could detect it. On the objection raised by the election agent recountings were done. The tampering was self-evident in the election petition and those who had cast their votes by post appeared as witnesses and were examined. An application was made that the four tampered postal ballot papers be allowed to be inspected and the concerned witnesses be examined to the questions with reference to them when they entered the witness box. The witnesses in their statements clearly stated that they had cast only the first preference votes in favour of the first respondent in the election petition and they had not indicated any other preferences in their ballot papers. The Court was satisfied that the four ballot papers were tampered with and were improperly received in favour of Sardar Raghbir Singh Gill, the appellant. Accordingly, on re-count the first respondent was shown to have been polled the first preference votes in excess of quota. Resultantly, the petition was allowed and the first respondent therein was declared elected and the election of the appellant, Sardar Raghbir Singh Gill, was set aside. Before the Supreme Court, the order of the High Court was challenged on the ground that the High Court erred in not only allowing the inspection and examination of postal ballot papers but also permitting the witnesses to be questioned relevant to the ballot papers. Thus, it was argued that the order of the High Court violates the mandate of Section 94 of the Representation of People Act, 1951. Section 94 of the Act, 1951 provides that "no witnesses or other person shall be required to state for whom he has voted in an election". (Emphasis supplied).
In the backdrop of the said facts, the Supreme Court examined the issues that does Section 94 indicate a view to ensure total secrecy of the ballot as an integral part of free and fair election and put a complete embargo on the disclosure for whom the witness voted, and whether free and fair election necessarily implies secrecy of voting or to ensure free and fair elections or secrecy of voting as to yield to the fundamental principle of free and fair election.
In S. Raghbir Singh Gill (supra) the principle has been set out in the following observations of the Supreme Court:
"10-A. Section 94 cannot be interpreted or examined in isolation. Its scope, ambit and underlying object must be ascertained in the context of the Act in which it finds its place, viz., the Representation of People Act, 1951 and further in the context of the fact that this Act itself was enacted in exercise of power conferred by the articles in Part XV titled "Elections" in the Constitution. An Act to give effect to the basic feature of the Constitution adumberated and boldly proclaimed in the preamble to the Constitution, viz., the people of India constituting into a sovereign, secular, democratic republic, has to be interpreted in a way that helps achieve the constitutional goal. Preamble sets out the political society which we wanted to set up and, therefore, it must be given all importance. The realisation of goals and vision set out in the preamble forms the fabric and permeates the whole scheme of Constitution. The goal on the constitutional horizon being a democratic republic, a free and fair election, a fountain spring and cornerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election for setting up democratic institution in the country is provided in the Act. Further, Sikri, C.J., Shelat, Grover, Hegde, Mukherjea & Reddy, JJ. in Kesavananda Bharati Sripadagalavaru v. State of Kerala24 have in clear and unambiguous terms laid down that republic democratic form of Government is one of the basic and essential features of our Constitution. In Mohinder Singh Gill v. The Chief Election Commissioner25, Krishna Iyer, J. has quoted with approval a statement of Sir Winston Churchill which reads as under: (SCC p. 413, para 2) At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper--no amount of rhetoric or voluminous discussions can possibly diminish the overwhelming importance of the point.....
11. ....The larger question whether free and fair elections necessarily imply secrecy of voting or to ensure free and fair elections in a given situation secrecy or voting has to yield to the fundamental principle of free and fair election, will be presently examined. At this stage it is necessary to confine to the language in which the provision is couched.
*** *** ***
13. Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. To that extent Section 94 of the Act carves out an exception to Section 132 of the Evidence Act and Section 95 of the Act (see Dr. Chhotabhai Jivabhai Patel v. Vadilal Lallubhai Mehta26). As Section 94 carves out an exception to Section 132 of the Evidence Act as also to Section 95 of the Act it was necessary to provide for protection of the witness if he is compelled to answer a question which may tend to incriminate him. Section 95 provides for grant of a certificate of indemnity in the circumstances therein set out. A conspectus of the relevant provisions of the Evidence Act and Sections 93, 94 and 95 of the Act would affirmatively show that they provide for a procedure, including the procedure for examination of witnesses, their rights and obligations in the trial of an election petition....
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15. Having said this, the substantial question is whether Section 94 enacts an absolute prohibition or a total embargo on a voter being questioned about how he voted which will infringe the secrecy of a ballot? The question is whether it is the privilege of the voter to refuse to answer a question as to for whom he voted or in order to ensure the secrecy of ballot there is a total embargo and absolute prohibition on finding out through the mouth of a voter for whom he voted? Is it inviolable in any situation, or contingency? Undoubtedly, secrecy of ballot is a keystone in the arch of constitutional democracy and that it rests on public policy, namely, that a voter shall be free from any kind of constraint or fear or untrammeled by any apprehension while voting. But this basic postulate of constitutional democracy, namely, secrecy of ballot was formulated not in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining constitutional democracy, viz., free and fair election.
*** *** ***
24. ....Undoubtedly, where a prohibition enacted is founded on public policy Courts should be slow to apply the doctrine of waiver but this approach overlooks the fact that if a privilege was granted for the benefit of an individual, in the instant case for the benefit of voter, even if it was conferred to advance a principle enacted in public interest nonetheless the person for whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waive it........"
Once again in A. Neelalohithadasan Nadar v. George Mascrene and others27 the same principle has been reiterated. In this case, in the Legislative Assembly election the margin of vote was only 21 votes. The election of the elected candidate was challenged by way of election petition on the ground that the petitioner had obtained more valid votes than the elected candidates and he is, therefore, entitled to be declared elected. The main ground of challenge was that several voters, whose names had wrongly and accidentlly been included in the electoral rolls of more than one polling stations in the constituency, had fraudulently voted in the election in both the polling stations taking advantage of the said error. In the election petition, the election petitioner had furnished the names, roll numbers and other details of several voters and the polling stations, in which they had voted. Thus, it was submitted that the votes of such persons be excluded from the consideration as they were contrary to the provisions under Section 62 (4) of the Representation of the People Act, 1951. The High Court allowed the inspection of marked copies of the electoral rolls and counterfoils as several double voters had been summoned in the Court. The High Court resorted to Section 73 of the Evidence Act and undertook an exercise to find out the double voting and recorded a finding of fact that in fact, the petitioner therein had secured more number of votes than the elected candidate, and the election petition was allowed. Aggrieved by the decision of the High Court, an appeal was filed before the Supreme Court which was dismissed and the Supreme Court held that inspection of marked copies of the electoral rolls and counterfoils was rightly allowed by the High Court in the case of purity of election. Relevant part of the judgment of the Supreme Court reads as under:
"10. The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh Tohra28. But this right of the voter is not absolute. It must yield to the principle of "purity of election" in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. "Secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle....
11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process."
In Kuldip Nayar (supra) the constitutional validity of the introduction of "open ballot system" of the election of the State representative in the Council of States (Rajya Sabha) was challenged. By the Representation of the People (Amendment) Act, 2003 (Act No. 40 of 2003) Sections 3, 59, 94 and 128 of the Representation of the People Act, 1951 were amended. In Section 3, as originally stood, it was provided that it was necessary for a person to be an elector in a State, from where he intends to be chosen as a representative of the State in the Rajya Sabha. By the said amendment, the requirement of being an elector of the State was substituted by the words "in India". Thus, it was no longer required to be an elector of a particular State. Relevant amendments for our purpose are the amendments in Sections 59, 94 and 128, which, as are quoted in paragraphs- 4 and 5 of Kuldip Nayar (supra), are reproduced hereunder:
"4. By the Representation of the People (Amendment) Act, 2003 (Act 40 of 2003), in Section 3 for the words "in that State or territory", the words "in India" were substituted.
5. In Sections 59, 94 and 128, the following provisos were inserted at the end:
"[59.] Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. * * * [94.] Provided that this section shall not apply to such witness or other person where he has voted by open ballot. * * * [128.] Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States."
In Rekha Rana (Smt) (supra) the Supreme Court has held as under:
"16. Section 94 of the Act provides that except in a case of voting by open ballot, no witness or other person shall be required to state for whom he has voted. The underlying object of the provision is to assure a voter that he would not be compelled, directly or indirectly, by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. The Section confers a privilege on the voter to protect him both in the Court when he is styled as a witness and outside the Court when he may be questioned about how he voted. This precisely is the principle of "secrecy of ballot".
In Abhiram Singh (supra) the Supreme Court has held in the following words:
"39. We see no reason to take a different view. Ordinarily, if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses. Of course, in statutes that have a penal consequence and affect the liberty of an individual or a statute that could impose a financial burden on a person, the rule of literal interpretation would still hold good.
40. The Representation of the People Act, 1951 is a statute that enables us to cherish and strengthen our democratic ideals. To interpret it in a manner that assists candidates to an election rather than the elector or the electorate in a vast democracy like ours would really be going against public interest. As it was famously said by Churchill: "At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper..." if the electoral law needs to be understood, interpreted and implemented in a manner that benefits the "little man" then it must be so. For the Representation of the People Act, 1951 this would be the essence of purposive interpretation."
In S.Iqbal Singh (supra) the Supreme Court held as under:
"5. The whole of the evidence let in was of a uniform type that a number of ballot papers did not bear the signature of the polling officer or the stamp of the booth. Indeed the allegation in the petition on this point is "ballot papers not bearing booth marks and full signatures of the Presiding Officer were wrongly counted as valid votes". It is not said that the ballot papers bore neither the mark nor the signature of the Presiding Officer. The rule in question, Rule No. 56, was amended in 1971 providing that only a ballot paper which did not contain both the mark and signature would be deemed invalid but even then it is not as though it automatically became invalid. The Returning Officer had to scrutinise it in order to see whether the ballot paper was a genuine ballot paper. This provision was apparently put in because under pressure of work the Polling Officer might have failed either to affix the stamp or his signature. If the Returning Officer was satisfied that the failure to affix the stamp or the signature was due to the fault of the polling officer but the ballot paper was itself genuine he could include it among the valid ballot papers. Therefore, merely by giving evidence that the ballot papers did not contain both the signature and the stamp it would not be established that the ballot paper concerned was not a valid ballot paper. But that is the only type of evidence which has been let in."
In Chaitanya Kumar Adatiya (supra) the Court has held as under:
"7. The petitioner's case is that the returning officer should have rejected as spurious the ballot papers which were issued to voters whose signatures or thumb impressions were not taken on the counterfoils. Rule 56(2) of the Conduct of Elections Rules, 1961 requires the returning officer to reject a ballot paper in certain cases. This rule so far as it is relevant to the point now under consideration runs as follows:...."
In Arun Kumar Bose (supra), the elected candidate was declared elected as he had received 24 more votes than the election petitioner. The election petition was filed under Section 81 of the Representation of the People Act amongst other on one of the grounds that more than 100 votes were rejected on the ground that they do not contain the signature of the Presiding Officer. The Court came to hold that rejection of at least 74 ballot papers for want of Presiding Officer's signature was not justified. Thus, the election petition was allowed. Hence, the said case is distinguishable on the said ground.
Learned Additional Advocate General Sri Manish Goyal has also supported the submission of learned Senior Counsel Sri Ravi Kant that a voter can waive his right for secrecy of ballot and the elector has a right to waive his privilege. Insofar as this submission is concerned, we have already considered it at length in the forgoing paragraphs and expressed our view, hence it does not need any further analysis.
Next he has submitted that this Court may take a pragmatic view under the judicial review. We regret to record our inability to accept the said submission. In case there is violation of statutory provision, the question to take a pragmatic view does not arise.
Sri Goyal has placed reliance on Bhanumati (supra). In the said case, the constitutional validity of the Uttar Pradesh Panchayat Laws (Amendment) Ordinance, 2007 (U.P. Ordinance 26 of 2007), which later on became the U.P. Panchayat Laws (Amendment) Act, 2007 (U.P. Act 44 of 2007) was challenged. By the said amendments, amongst others, the offices of "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh" and "Upadhyaksha" have been omitted by Section 9 of the Amendment Act, being U.P. Act 44 of 2007. Another amendment was the words "more than half" in place of "not less than two-thirds" and the words "one year" in place of "two years" in Section 15 of the Amendment Act, which was also under challenge. The Lucknow Bench of this Court upheld the validity of the aforesaid amendments. The Supreme Court affirmed the judgment of the High Court. We find that the judgment of Bhanumati (supra) does not support the case of the respondents.
In Arikala Narasa Reddy (supra), on which reliance has been placed by Sri Goyal, the Supreme Court had the occasion to deal with the dispute regarding recounting of the votes. In that case also, the Supreme Court has held that the statutory requirement relating to election law have to be strictly adhered to. The Supreme Court has observed in the following terms:
"17. The secrecy of a ballot is to be preserved in view of the statutory provision contained in Section 94 of the Act. Secrecy of ballot has always been treated as sacrosanct and indispensable adjunct of free and fair election. Such principle of secrecy is based on public policy aimed to ensure that voter may vote without fear or favour and is free from any apprehension of its disclosure against his will. In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra29, a Constitution Bench (sic two-Judge Bench) of this Court considered the aspect of secrecy of vote and held that such policy is for the benefit of the voters to enable them to cast their vote freely. However, where a benefit, even though based on public policy, is granted to a person, it is open for that person and no one else to waive of such benefit. The very concept of privilege inheres a right to wave it. (See also Kuldip Nayar v. Union of India30 and People's Union for Civil Liberties v. Union of India31)."
The next case cited by Sri Goyal is Usha Bharti (supra). In the said case, the notice for no-confidence motion was moved against Adhyaksha of Zila Panchayat, Sitapur on 30th October, 2012 under Section 28 of the Act, 1961. It was signed by 37 members in terms of Section 28 (2) of the said Act. The Collector, Sitapur issued a notice to the elected members and fixed 23rd November, 2012 for considering the motion of no-confidence. Adhyaksha- Usha Bharti filed a writ petition in the High Court alleging that on the motion/notice of no-confidence signatures of three members were forged. The High Court directed the District Judge or any Additional District Judge nominated by him to hold an enquiry to ascertain the genuineness of the affidavits of the three-members. Before the Supreme Court, Seventy-third amendment of the Constitution, provision of Section 28 of the Act, 1961 and the judgment of Bhanumati (supra) were considered and the Court has quoted with approval the aforesaid judgments. The relevant part of the judgment reads as under:
"43. Upon examination of the entire Scheme of the Seventy-third Amendment, in the context of framing of the Constitution of India, this Court in Bhanumati32, observed as follows: (SCC p.18, para 54) "54. The argument that as a result of the impugned amendment stability and dignity of the Panchayati Raj institutions has been undermined, is also not well founded. As a result of no-confidence motion the Chairperson of a panchayat loses his position as a Chairperson but he remains a member, and the continuance of panchayat as an institution is not affected in the least."
We are in respectful agreement with the aforesaid conclusion."
Thus, the cases cited by Sri Goyal stand on a complete different footing. The facts of the present case are completely distinguishable.
Conclusion:
It is a trite that free and fair election is a beating heart of the democracy. A careful reading of the judgments of the Supreme Court, referred to above, leads to inescapable conclusion that secrecy of ballot has always been considered sacrosanct and key-stone in the arch of democracy. One of the basic objects of secrecy of the ballot paper is to subserve the highest principle of the constitutional democracy, to maintain purity of the election for ensuring free and fair election. For the purity of the election, it is necessary that a voter must have an atmosphere free from fear, favour, hostility and tension. The disclosure of his choice under any fear or favour or compulsion strikes at the very root of purity of the election.
In other words, an elector can waive his privilege provided to him under Section 94 of Act, 1951 to unmask the corruption, foul-play and other illegal act adopted by a candidate but the innate idea remains to promote and uphold the purity of the election, which is a basic structure of a democracy.
The Supreme Court has sounded a note of caution that the Courts should be slow to apply the doctrine of waiver. If the submission advanced by learned Senior Advocate Sri Ravi Kant regarding right of the voter to waive his privilege just after casting his vote and before inserting the ballot paper in the ballot box is accepted, in our opinion, it is fraught with danger to pollute the purity of the election. It will be very easy for a political leader with a criminal background to influence a voter to exercise his right to vote in his favour by using money/ muscle-power and to ensure that the voter under the fear or favour may waive his right of secrecy of votes and display his ballot paper before inserting it in the ballot box. It will seriously undermine the free and fair election if a voter is not able to vote according to his conscience, without fear, coercion or pressure.
Rule 4 of the Rules, 1966 clearly shows the intention of the rule-making authority regarding the secrecy of ballot. It casts an obligation on the Presiding Officer to make such "arrangement to maintain the secrecy of ballot". In our view, it is founded on public policy to ensure purity of election. Unlike an election of the Parliament and the Legislative Assembly, the number of votes are very limited in the matter of no-confidence motion. Therefore, the need to maintain secrecy of ballot is more imperative in the matter of no-confidence motions, where an elected representative is sought to be removed on the basis of no-confidence of the members of the local body. One of the basic features of the purity of free and fair election is that voter must cast his vote without any fear or favour.
Insofar as right of waiver, on which heavy reliance has been placed by learned counsel for the respondents, is concerned, we find that the waiver involves abandonment of right by a person. In other words, waiver is an agreement not to assert his right or surrender his right. But in waiver also there are certain exceptions, a statutory right cannot be waived except on the ground of public policy. It is apt to note the following paragraphs of 'Administrative Law', (Eighth Edition) (Page 247), by Sir William Wade:
"Personal benefit and public policy It may be difficult to decide whether a statutory condition exists solely for a person's benefit so that he may waive it on the principle quilibet potest renuntiare juri pro se introducto. It may, on the contrary, embody some public policy which an individual has no power to modify...."
In 'Principles of Administrative Law', by M.P. Jain & S.N. Jain, (Sixth Edition, Reprint 2011)(Page 795), following principle has been stated:
"Waiver of Statutory Rights: Whether a right can be waived or not by an individual depends on two questions. First, has the statute conferred rights and privileges exclusively on the person involved or on third persons as well? In other words, whether the waiver by a party denies the benefit solely given to him or to third persons as well; the doctrine of waiver will not apply in the latter case. It will differ from case to case whether the statute confers a right on a person to be exercised only for his benefit or its exercise (or non-exercise) affects other also.33 Second, even if the benefit accruing from a statute vests exclusively in the person waiving that right, still the waiver may not be applicable on the grounds of public policy, public interest or public morality. Considerations of public policy in disallowing waiver are more important than those of individual benefit."
In our view, under the scheme of the Rules, 1966 the electorate cannot waive his privilege of secrecy of the vote for three reasons: (i) Rule 4 of the Rules, 1966 casts a duty on the Presiding Officer to maintain the secrecy of ballot; (ii) unlike Section 94 of the Act, 1951, the Act, 1961 or the Rules, 1966 do not give any right/ privilege to electorate for secrecy of ballot, hence he has no privilege/right to waive; (iii) even if it is assumed that he has right/ privilege, it cannot be waived against the public policy to maintain purity of the election.
As discussed above, Rules-4 and 7 of the Rules, 1966 show the intention of the rule-making authority for the secrecy of ballot. The said rules cast an obligation on the Presiding Officer to maintain the secrecy of the ballot, hence it is not a right conferred upon the voter but a duty on the Presiding Officer to maintain the secrecy of the ballot for free and fair election as it is based on the public policy to maintain the purity of the election.
In addition to above, there is another aspect of the matter, we cannot be oblivious of the ground reality of the State of Uttar Pradesh, which is alarming rise of criminalization of the politics.
At this juncture, it is apposite to notice that in view of the growing criminalization of politics due to unholy alliance between politicians, bureaucrats and criminals the Union Government in 1993 set up a Committee under the chairmanship of Sri V.V. Vohra to examine the said malaise and submit a report. The Committee in its report has suggested various remedial measures. It has also referred a report of Director of Intelligence Bureau in respect of Uttar Pradesh and Bihar. The relevant part of the report, which is worth noticing for our purpose, is extracted below:
"In certain States like Bihar, Haryana and UP, these [criminal] gangs enjoy the patronage of local politicians, cutting across party lines, and the protection of Governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the years get themselves elected to local bodies, State assemblies and the national parliament. Resultantly, such elements have acquired considerable political clout, seriously jeopardizing the smooth functioning of the administration and the safety of life and property of the common man, causing a sense of despair and alienation among the people."
(Emphasis supplied) The Supreme Court in a series of its decisions went elaborately into all implications of criminalisation of politics. The Court has observed that criminalization of politics has potentiality to paralyses and strangulate the purity of free and fair election. Criminalization of politics is held to be "an anathema to the sacredness of democracy and "repulsive to the idea of free and fair election". It corrodes the legitimacy of the collective ethos, frustration, the hopes and aspiration of the citizens and has potentiality to obstruct if not derail the rule of law."34 Recently, the Supreme Court in the case of Krishnamoorthy v. Sivakumar and others35 has elaborately considered the growing trend of the criminalization of the politics. The Supreme Court has quoted with approval the law laid down by a three-Judge Bench of the Supreme Court in Anukul Chandra Pradhan v. Union of India36 and Manoj Narula v. Union of India37. The relevant part of the judgment of Krishnamoorthy (supra) reads as under:
"34. In Anukul Chandra Pradhan v. Union of India, the Court was dealing with the provisions made in the election law which excluded persons with criminal background and the kind specified therein, from the elections as candidates and voters. In that context, the Court held thus: (SCC p. 5, para 5) "......The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object."
Be it stated, the Court did not accept the challenge to the constitutional validity of sub-Section 5 of Section 62 of the 1951 Act which was amended to provide that no person shall vote at any election if he is confined in prison, whether under a sentence of imprisonment, or under lawful confinement, or otherwise or is in the lawful custody of the police. A proviso was carved out to exclude a person subjected to preventive detention under any law for the time being in force.
35. Recently, in Manoj Narula v. Union of India, the Constitution Bench harping on the concept of systemic corruption, has been constrained to state thus: (SCC p. 24, paras 12-13) "12. It is worth saying that systemic corruption and sponsored criminalisation can corrode the fundamental core of elective democracy and, consequently, the constitutional governance. The agonised concern expressed by this Court on being moved by the conscious citizens, as is perceptible from the authorities referred to hereinabove, clearly shows that a democratic republic polity hopes and aspires to be governed by a Government which is run by the elected representatives who do not have any involvement in serious criminal offences or offences relating to corruption, casteism, societal problems, affecting the sovereignty of the nation and many other offences. There are recommendations given by different committees constituted by various Governments for electoral reforms. Some of the reports that have been highlighted at the Bar are (i) Goswami Committee on Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) Indrajit Gupta Committee on State Funding of Elections (1998), (iv) Law Commission Report on Reforms of the Electoral Laws (1999), (v) National Commission to Review the Working of the Constitution (2001), (vi) Election Commission of India - Proposed Electoral Reforms (2004), (vii) the Second Administrative Reforms Commission (2008), (viii) Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013), and (ix) Law Commission Report (2014)...."
36. Criminalisation of politics is absolutely unacceptable. Corruption in public life is indubitably deprecable. The citizenry has been compelled to stand as a silent, deaf and mute spectator to the corruption either being helpless or being resigned to fate........"
The cases cited above appears to us have furnished a complete answer to the submissions of Sri Ravi Kant.
It is apposite to mention that all the case laws cited by learned counsel for the respondents are in respect of the matter arising from interpretation of Section 94 of the Act, 1951. A simple reading of Section 94 along with its marginal notes shows that it gives immunity to a voter that no one can compel him to state for whom he has voted. The voter's right for maintaining the secrecy of his votes has further been insulated by casting an obligation under Section 128 on the persons engaged in the election duty, to maintain the secrecy of his vote unless authorised by law. Kuldip Nayar (supra) deals with open ballot matter. The main object to bring the amendment was that in the wake of large scale cross voting in the Rajya Sabha and Legislative Council election, the Ethics Committee of the Parliament made certain suggestions to eradicate the said evil. The underlined object was to keep the purity of the election.
On a careful consideration of the submissions of the learned counsel on either side and relevant rules, to which our attention was drawn, and for the reasons recorded herein-above, we are clearly of the view that the minutes of the meeting of no-confidence motion passed on 25th October, 2018 against the petitioner is needed to be set aside. Accordingly, we set it aside.
Consequently, the order dated 15th November, 2018, which is under challenge in the second writ petition, also does not stand and is liable to be quashed. Accordingly, it is quashed.
Both the writ petitions are allowed.
No order as to costs.
Let the original record of the case including C.D. be returned to Sri A.K. Goyal, learned Additional Chief Standing Counsel.
Dated: 13th March, 2019 MAA/Digamber/SKT/-
(Justice Pankaj Bhatia) (Justice P.K.S. Baghel) (Per Hon'ble Pankaj Bhatia,J.) I am in respectful agreement with my brother Judge. However, I record my views with regard to the submissions made by Sri Ravi Kant, Senior Advocate, relating to Section 94 of the Representation of the People Act, 1951 and strong reliance placed by him to press his argument that secrecy of ballot is not sacrosanct in view of the provisions of Section 94 of the Representation of the People Act and as explained by the Supreme Court in the case of S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra and others, 1980 Supp SCC 53.
The Representation of the People Act was enacted by the Parliament in the year 1951 and Chapter IV of the Representation of the People Act specifically governs the procedure to be followed at elections. Section 59 of the Chapter IV of the Act specifically provides for the manner of vote at the election and is quoted herein below:
"59. Manner of voting at elections.--At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed 1[and, save as expressly provided by this Act, no votes shall be received by proxy]:
[Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot.]"
The word 'prescribed' used in the said section is prescribed under the Conduct of Election Rules, 1961 framed under the Representation of the People Act and Rule 39 of the said Rules clearly prescribes for maintenance of secrecy of voting by electors within the Polling Station and also prescribes for voting procedure. Rule 39 is quoted herein below:
39. Maintenance of secrecy of voting by electors within polling station and voting procedure.--
(1) Every elector to whom a ballot paper has been issued under rule 38 or under any other provision of these rules, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down. (2) The elector on receiving the ballot paper shall forthwith--
(a) proceed to one of the voting compartments;
(b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote;
(c) fold the ballot paper so as to conceal his vote;
(d) if required, show to the presiding officer the distinguishing mark on the ballot paper;
(e) insert the folded ballot paper into the ballot box; and
(f) quit the polling station.
(3) Every elector shall vote without undue delay. (4) No elector shall be allowed to enter a voting compartment when another elector is inside it. (5) If an elector to whom a ballot paper has been issued, refuses, after warning given by the presiding officer, to observe the procedure as laid down in sub-rule (2), the ballot paper issued to him shall, whether he has recorded his vote thereon or not, be taken back from him by the presiding officer or a polling officer under the direction of the presiding officer. (6) After the ballot paper has been taken back, the presiding officer shall record on its back the words "Cancelled: voting procedure violated" and put his signature below those words. (7) All the ballot papers on which the words "Cancelled: voting procedure violated" are recorded, shall be kept in a separate cover which shall bear on its face the words "Ballot papers: voting procedure violated". (8) Without prejudice to any other penalty to which an elector, from whom a ballot paper has been taken back under sub-rule (5), may be liable, the vote, if any, recorded on such ballot paper shall not be counted.
After the amendment in the Representation of the People Act and after the introduction of Electronic Voting Machines, the Rules were amended to include Rule 49-M in the said Rules which also provide for maintenance of secrecy of voting by Electors Rule 49M is concluded herein below:
49M. Maintenance of secrecy of voting by electors within the polling station and voting procedures.--
(1) Every elector who has been permitted to vote under rule 49L shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down. (2) Immediately on being permitted to vote the elector shall proceed to the presiding officer or the polling officer incharge of the control unit of the voting machine who shall, by pressing the appropriate button on the control unit, activate the balloting unit; for recording of elector's vote. (3) The elector shall thereafter forthwith--
(a) proceed to the voting compartment;
(b) record his vote by pressing the button on the balloting unit against the name and symbol of the candidate for whom he intends to vote; and
(c) come out of the voting compartment and leave the polling station. (4) Every elector shall vote without undue delay. (5) No elector shall be allowed to enter the voting compartment when another elector is inside it. (6) If an elector who has been permitted to vote under rule 49L, or rule 49P refuses after warning given by the presiding officer to observe the procedure laid down in sub-rule (3) of the said rules, the presiding officer or a polling officer under the direction of the presiding officer shall not allow such elector to vote. (7) Where an elector is not allowed to vote under sub-rule (6), a remark to the effect that voting procedure has been violated shall be made against the elector's name in the register of voters in Form 17A by the presiding officer under his signature.
The question that arises is as to why the Legislature provided for Section 94 in the Part VI, Chapter III of the Representation of the People Act and not under Chapter IV. The reasoning is clear as Part VI of the Representation of the People Act deals with trial of election petitions, the Legislature in its wisdom included Section 94 in the said Part Chapter III only to fortify the concept of secrecy to be maintained even during the trial in an election petition, however, the said liberty given to the witness during the trial of the election petition could be waived by the said witness or the other person referred to in the said section during the trial in an election petition. Thus, the said Section 94 governs the privileges granted to the voter, witness or any other person only during the conduct of trials of an election. Rule 39 and Rule 49M clearly did not prescribe any such privilege to the voter during the process of election and, in fact, it is specifically provided in the said Rules that in the event of failure to observe or contravene any of the provisions of the said Rules, the right to vote can be taken away by the Election Officer. Thus, analyzing the said provision, it is clear that the privilege of a voter granted by the Act and the rules under the Representation of the People Act cannot be waived during the process of election but can be waived at the time of hearing of an election petition as clarified by the Supreme Court in the case of Raghbir Singh Gill (supra). It is for this reason I am unable to agree with the submissions of Sri Ravi Kant that the privilege given to the voter for secrecy can be waived by him even during the process of casting of vote. There is another reason to disagree with Sri Ravi Kant that there being no corresponding provision to section 94 of the Representation of the People Act under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 or the Rules framed under Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules, 1966.
As regards the submission of Sri Ravi Kant that secrecy of ballot is not so sacrosanct and purity of elections have to give way to the secrecy in coming to a conclusion whether the elections are free and fair in my view, the secrecy of ballot is an essential defining characteristic of any legitimate democratic systems. Secret ballot is not only secured as a legal matter in India (with exception as carved out for elections to Council of States), it has to be secured through practices which inspires citizens belief in the secrecy of ballot. The choice made in secrecy and privacy are essential features which determine the outcome of an independent choice exercised by the voter. Considering the argument that if a choice is to be made between secrecy of ballot and purity of election the later should prevail in my view that even above the two principles has to be the voters believe in the choice, he is making uninfluenced by any external factor. The question to be addressed is not whether the choice while casting the vote was made on account of any coercion, threat or influence (all to be pleaded and established) but whether the choice was made with a free mind, free from perception of fear, coercion or influence.
The foundation of any electoral process is the belief in secrecy and anonymity during voting process which two things have real impacts on the choices made during the electoral process. It is not only desirable that the actual secrecy during the voting process must be maintained, it is in fact the duty of the functionaries conducting the elections to strengthen the 'perception of ballot secrecy'.
In a local election like the one in hand, the voters behaviour can be influenced by many factors for example they may feel that the choice exercised by them may be in conflict with the others in the community or that the choice exercised by them, if revealed, may have adverse impact on their social, political or financial status. The choice made under the influence of all these perceptions and the ones made in secrecy without being influenced by these factors can and do vary so as to affect the outcome of the election. Thus, the choices while casting the votes, have to be made without any external influence and that is what is true choice to which the electoral process should aim.
Sri Ravi Kant, Senior Advocate, has referred the word "Australian Ballot" to impress that Secrecy of Ballot is not sacrosanct The "Australian Ballaot" as defined under encyclopedias Britanica is defined as under:
"The "Australian Ballot" also called secret ballot, the system of voting in which the voters make their choice in privacy of uniform ballots printed and distributed by the Government or designated their choice by some other secret means."
The "Australian Ballot" or the secret ballot was first introduced in Victoria and South Australia in the year 1856 and since then the secret ballot is referred to as the "Australian Ballot". The secret ballot or an "Australian Ballot" was introduced in the United Kingdom in the year 1872 by virtue of the 'Ballot Act.' Prior to the introduction of Ballot Act in the United Kingdom the voting was done by show of hands or a mark in public in the presence of onlookers which practice led to widespread bribery with money and liquor, drunken fights and threats from candidates etc. and to cure the said malady, the Ballot Act 1872 was introduced in the United Kingdom and later on followed in the United States of America after 1894. Since then "secrecy of ballot" has been the hall mark of any democratic process and thus constitutes the backbone of any democratic election which encourages free choice by the voter uninfluenced by any external voters. Thus, for the reasons recorded above, I disagree with the submissions of Sri Ravi Kant that Secrecy of Ballot is not sacrosanct.
Order date:13.3.2019 Puspendra (Justice Pankaj Bhatia)